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2003 DIGILAW 899 (JHR)

Subhash Mandai v. State of Bihar

2003-07-25

AMARESHWAR SAHAY

body2003
Judgment Amareshwar Sahay, J.- The sole appellant has been convicted under Section 376 of the Indian Penal Code and has been sentenced to undergo Rigorous Imprisonment for five years by the Sessions Judge, Giridih, vide his judgment dated 19.9.1997 in S.T. no. 192 of 1993. 2. Being aggrieved by the said judgment the appellant has filed the present appeal. 3. It appears that Maimoon daughter of Late Juman Mian lodged a complaint before the Chief Judicial Magistrate, Giridih which was sent to the Officer-in-Charge, Giridih (M) P.S. under section 156(3) of the Code of Crimin.al Procedure for instituting the same as First Information Report and accordingly First Information Report was registered under Section 376 of the Indian Penal Code against the appellant. 4. The prosecution case is that the informant, Maimoon was working in the house of the appellant, Subhas Mandai as maid servant since last about seven years on a monthly pay of Rs. 150/- per month. She used to work there from 7 A.M. to 8 P.M. It is stated that the appellant started to induce the informant, Maimoon from January, 1992 for getting her ready for Sexual intercourse with him but she always refused. However, after about three months on 15.3.1992 at about 7 P.M., while the informant was washing utensils in the house of the appellant and all the inmates of the house were out, the appellant caught hold of her from behind. She wanted to rescue herself but she failed and then the appellant threw her down and then committed rape on her against her will. When she started weeping, the appellant paid Rs. 100/- to her and asked not to disclose to anyone about the said occurrence. She did not disclose the matter to anyone, out of shame and kept mum. It is further stated that the appellant used to satisfy his lust, whenever he got opportunity and he also paid some money to her and in this way she became pregnant about which she came to know in the month of August, 1992, then she disclosed the fact of pregnancy to the appellant, who assured her, that he would get the pregnancy terminated. Since then the appellant stopped having sexual intercourse with her and he started supplying medicine to her for terminating her pregnancy but medicines were of no effect and ultimately when the pregnancy became apparent physically, her family members could know about it. On being asked by mother and sister, the informant disclosed the fact of rape to them and then her mother and sisters enquired from the appellant about the same, the appellant acknowledged his guilt and offered to bear the cost for terminating the pregnancy of the victim, but when the money was demanded from him, the appellant flatly refused to pay any amount. It is stated that at that time the victim was aged only 15 years and thereafter finding no way she lodged the complaint in court. 5. The defence of the appellant is that he has been falsely implicated in this case at the instance of one Mukhia, Yakub Ansari with whom he had animosity because of political reasons. The further plea of the defence is that victim, Maimoon had illicit relations with her brother-in-law, Bahnoi, Islam. Because of the said illicit relationship she conceived through Islam and daughter was born to her but the said Islam fled away from the village leaving her. 6. In order to establish the charge altogether 11 witnesses were examined on behalf of the prosecution. 7. P.W 1 Sahida Khatoon, is the mother of the victim, P.W2, Kulsum, P.W.3, Bali Mian, Sarhu of the father of the victim, P.W.4 Shambhu Nath Mitra, P.W.5, Maimoon, that is the victim, P.W6 Sattar Ali, brother of the victim, Hidayat Ali P'W7, P.W8 Madina Bibi, P.W 9 I.O. Awadhesh Kumar, P.W10, Dr. Abha Kumar and P.W11 Md. Salim is a formal witness who has proved copy of the complaint sent to the police i.e. Ext. 3. 8. P.W.2 Kulsum and P.W8 Mkadina Bibi were tendered. P.W. 6 Sattar Ali, who is the brother of the victim, has been declared hostile. P.W10 Dr. Abha Kumar who examined the victim on 30.1.1993 at about 2.40 P.M. in Sadar Hospital, has stated in her evidence that the victim was found to be aged about 16 years and she was carrying pregnancy of about 6-1/2 months. 9. P.W. 6 Sattar Ali, who is the brother of the victim, has been declared hostile. P.W10 Dr. Abha Kumar who examined the victim on 30.1.1993 at about 2.40 P.M. in Sadar Hospital, has stated in her evidence that the victim was found to be aged about 16 years and she was carrying pregnancy of about 6-1/2 months. 9. P.W.1 Sahida Khatoon, who is the mother of the victim, has stated in her evidence that her daughter was working as maid servant in the house of the appellant and she was working there since about 7 to 8 years. She has further stated that her daughter, Maimoon had disclosed that she was having a child from the appellant in her womb. This witness asked the appellant to get the child aborted but it could not be done as Dr. was demanding more money then she informed about the matter to Mukhia(not examined), Dr. Shambhu Nath Mitra (P.W4) and Bali Mian (P.W3). Thereafter a daughter was born to the victim who is still alive. She further stated that Maimoon, victim, was her eldest daughter. 10. The statements of the P.W3 about the age of the victim girl is vitally contradicted by the statements of her son i.e. P.W.6 who, in his evidence has specifically stated that his age is 34 years on the date of his deposition i.e. April 1986. Therefore, it appears that the age, as has been disclosed by the victim at the time of her deposition to be aged 17 years and as disclosed by the mother P.W1 is falsified by the statements of P.W6 i.e. brother of the victim. If the Statements of the mother of the victim is accepted that the victim was her eldest daughter then her age as on the date of the deposition comes to more than 34 years. In other words on the date of the occurrence it appears that she was about 28 years or so. In this way there is vital contradiction in the evidence of the prosecution on the point of the age of the victim girl. 11. P.W.5, Maimoon i.e. victim in her evidence has supported her allegation against the appellant and has stated in details about the occurrence of the rape by the appellant. There are some vital and glaring facts in her statements. 11. P.W.5, Maimoon i.e. victim in her evidence has supported her allegation against the appellant and has stated in details about the occurrence of the rape by the appellant. There are some vital and glaring facts in her statements. In cross-examination she has stated that whenever the appellant used to pay money after having sexual intercourse, she used to pay said money to her mother. She further stated that she disclosed the fact to the police after a lapse of about 1-1/4 year of the rape committed by the appellant for the first time. It is very important to note that the victim in her examination in chief itself has stated that child born out of the rape committed by the appellant was aged 1-1/2 years on the date of her deposition i.e. 17.7.1995. Therefore, it appears that the child must have born in the month of January, 1994. According to the prosecution, the appellant was having sexual relationship with victim in between March 1992 to August 1992. Dr. P.W.10, who medically examined her on 30.1.1993, found the pregnancy of the victim of about 6-1/2 months. Thus the statements of the Doctor also does not fit in with the statement of the victim girl and also the period of the alleged commission of the offence. Therefore, the case of the prosecution becomes very much doubtful and it puts a big question mark as to whether the child alleged to have been born out from the sexual relationship between the appellant and victim was in fact a child born out from their relationship or not. The prosecution has failed to establish the said fact. 12. As stated earlier, there is vital dispute and contradiction in the evidence adduced by the prosecution regarding the age of the girl also and it does not appear that the victim was a minor at the relevant time. 13. Another vital point in this case is that the complaint case was lodged after the victim was having pregnancy of 6-1/2 months. It is not known as to why she kept mum for such a long time. Therefore, in my opinion, the inordinate delay in lodging the complaint in the facts and circumstances of this case speaks much against the prosecution. 14. Even the statemei1t of the victim does not inspire confidence and the truthfulness of the prosecution case is doubtful. It is not known as to why she kept mum for such a long time. Therefore, in my opinion, the inordinate delay in lodging the complaint in the facts and circumstances of this case speaks much against the prosecution. 14. Even the statemei1t of the victim does not inspire confidence and the truthfulness of the prosecution case is doubtful. In view of my discussion and findings above, I hold that the prosecution has failed to prove its case, beyond all reasonable doubts and thus the conviction under section 376 of the Indian Penal Code and sentence for five years passed by the trial court against the appellant cannot be sustained. 15. In the result this appeal is allowed and conviction and sentence as aforesaid passed against the appellant by the trial court is hereby set aside. The appellant is on bail. He is discharged of the liability of his bail bond.